If you’re waiting for permission to speak, I’ve got news for you…
The Big Chill
In First Amendment law, we talk about a “chilling effect.” The term itself gets its origin from Justice Frankfurter’s concurrence in Wieman v. Updegraff (1952). In that case, a state legislature had required state employees, including educators, to take “loyalty oaths” that they did not support views or organizations that advocated for policies against the current government. These were basically “I’m not a communist” pledges. Beyond what the Court held, Frankfurter said that these conditions of public employment have:
“an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers.”Wieman v. Updegraff, 344 U.S. 183, 195 (1952)
The idea here is that something can damage free speech without actually being a direct attack on it. The slam-dunk cases – criminalizing a protestor or firing a professor for teaching a subject – are ones involving direct attacks. Someone speaks or starts to speak, the government reacts, and – boom – speech is damaged. But there are the more subtle cases involving passive damage before the words even leave the speaker’s mouth. Ron DeSantis’ political stunts aimed at limiting classroom instruction (mostly intended to paint him as the “Trump Who Can Read” candidate to a rabid base) are some examples that come to mind. The government announces beforehand, “Let all beware: you speak at your peril.” That, I think, is the chill to free play that Frankfurter had in mind: state-level chill.
This chilling effect has spilled over into how we are beginning to talk about national discourse generally. Free speech is, at the end of the day, a civil liberty that protects citizens from an overreaching government; with very limited exceptions, the Free Speech Clause doesn’t extend to private actors like individuals and non-government organizations. But the chilling effect idea has cropped up in a variety of contexts that have nothing to do with the government as the bad actor: the banning of social media accounts by platforms, the shouting down of deliberatively provocative campus speakers (and the subsequent circuses that follow), and the ad nauseam debate over “cancel culture” (or whatever we’ll call it this year). In each case, you don’t have to dig too deep to find some conversation about whether or not So-and-So’s actions chilled the speech of This Person or That Group. If the Free Speech Clause is focused on state-level chill, then this version is more public-level chill.
There’s one more chill, though, that has been percolating in my brain for some time. There are probably a lot of labels to give it, but it takes on a more individual, personal quality. As controversial as state- and public-level chill are, I think this other one is maybe the most sinister, the most difficult to pin down, the most difficult to inoculate. I’m going call it the Big Chill.
Waiting for The Sign to Speak
Cards on the table. I spent over 30 years of my life in the Mormon church. I grew up in rural Southeast Idaho. I came from a small Mormon family with two public school teachers as my parents. I served a Mormon mission at 19. I went to a Mormon college, got an English degree that qualified me for next to nothing. I went to GWU Law School and got a law degree that qualified me to work for way too many hours for clients I couldn’t give two shits about. I went to UC Davis and got a Ph.D. in political theory that qualified me to teach about subjects that the vast majority of society finds to be fun dinner conversations (if that). Along the way, I got married, left Mormonism, had a kid, and played a lot of D&D.
From the minute I shoveled cow shit after school as an 11-year-old right up to a few years ago, I subjected myself to the Big Chill. When I was a child, I was convinced that I had nothing to say until I met some threshold. I’ll get to talk when I’m a teenager. Wait, no. I guess I’ll get to talk when I’ve graduated high school. Eh, it must take a college degree. Oh, wait…it must take good grades. Or a law degree. Or a BigLaw job. Or a Ph.D. Or good dissertation. Or endless literature reviews. Or a tenure-track job. Or a solo peer-reviewed piece. Or two of them. Or maybe a dozen…
And on…and on.
Maybe it was my Idaho upbringing or my Mormon heritage. Or maybe I was just deeply confused. But for the better part of my life, I have been waiting for “The Sign” to start talking. Like a cue by someone off stage to say some lines, I kept waiting for the indication that, yes, now I’m allowed to talk. And then it hit me a few years ago: the only thing standing in my way is me.
The Big Chill is this perverse idea that we’re not allowed to express a thought until some pre-established moment. This idea is often discussed in the context of assertiveness or the fear of rejection. There’s also a significant body of literature that shows how complex the Big Chill is when layered over a person’s identity; wealth, race, gender, sexuality, and other demographic factors play an enormous role in speaking.
For me, and I think for many, the Big Chill boils down to this false assumption that conversations are only had between “The Qualified” who follow some orthodoxy. Don’t get me wrong: I’m a firm believer that public policies and individual actions should be based on rigorous analysis with a strong theoretical foundation and room for mistakes. It’s a piss-poor life to spend it doing something without a very good reason for doing it and not adapting when there are better ways. But those well-reasoned results are a product of deliberation and discussion by people who were, at best, marginally knowledgeable about the subject before the conversation started. Not a single person knows the future, no matter how long their works cited page is. It’s through discussion that we learn and refine our knowledge of a specific subject. When we treat ourselves as submissive parishioners who must dutifully pay homage to The Qualified magisterium and its orthodoxy, we’re chilling ourselves. And we’re catering to the vocal, hysterical, anti-truth crowd that would prefer only they speak.
Thawing the Big Chill
To put it as plainly as I can, I’m done with that shit. I’m over this tendency in my life to wait for The Sign from The Qualified. I’m finished with parsing my language in a special, acceptable way or worrying about whether I have the right amount of time behind me to speak. I’m done with endlessly combing previous literature to make sure that this thing I’m about to say hasn’t been said before or that I’m dropping the right names into the footnotes. Like the state-level and public-level chill that warns would-be speakers, “Here be monsters!”, this Big Chill has kept a lot of good conversations from happening.
I doubt very much that anything I share via this Substack will be ground-breaking or world-changing. It may actually be an aging Millennial shouting into the void. But I am eager to speak and to invite a community of speakers along with me. I have a strong suspicion that there is a “silent majority” of would-be speakers out there who share my belief. And so I think the way I plan to thaw the Big Chill in my own life is two-fold:
- To speak and converse about a variety of subjects on my own level of understanding with the knowledge I currently possess, and
- To listen to others and reflect about those subjects to increase my understanding.
Let’s call it: Thawt – thawing with thought. If you’re on board, come along.